https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4520

Acres and Homes Limited v Attorney General (Environment and Land Case 830 of 2013) [2026] KEELC 4520 (KLR) (Environment and Land) (15 July 2026) (Judgment) Neutral citation: [2026] KEELC 4520 (KLR) Republic of Kenya In the Environment and Land Court at Naivasha Environment and Land Environment and Land Case 830 of 2013 MN Kullow, J July 15, 2026 Between Acres and Homes Limited Plaintiff and The Honourable Attorney General Defendant Judgment 1.The Plaintiff instituted this suit vide a Plaint dated 1st July 2013 seeking the following reliefs:a.A declaration that the Department of Defence’s entry into and continued occupation of property L.R. No. 209/14030 Grant No. LR. 83237 situate along Lenana Road, Nairobi, across and opposite Ulinzi Gate of Ulinzi House, at the Headquarters of the Department of Defence is unlawful.b.An order directing the Department of Defence to vacate from property L.R. No. 209/14030 Grant No. LR. 83237 situate along Lenana Road, Nairobi, across and opposite Ulinzi Gate of Ulinzi House, at the Headquarters of the Department of Defence and yield vacant possession thereof to the Plaintiff.c.The Defendant be ordered to pay the Plaintiff mesne profits at the rate of Kshs. 250,000.00 per month with effect from 31st May, 2012 until delivery of vacant possession of the property.d.The Defendant be ordered to pay the Plaintiff general damages for trespass.e.The Defendant be ordered to pay the Plaintiff costs of this suit together with interest thereon at court rates from the date of filing of suit until payment in full.f.Any such other or further relief as this Honourable Court may deem appropriate. 2.The Plaintiff pleaded that it is a limited liability company duly incorporated under the Companies Act and that it is the registered proprietor of L.R. No. 209/14030, Grant No. L.R. 83237, situated along Lenana Road, Nairobi, opposite Ulinzi Gate of Ulinzi House at the Headquarters of the Department of Defence. It averred that, by virtue of its registration, it is entitled to the exclusive possession, occupation and use of the suit property. 3.The Plaintiff further pleaded that it acquired the suit property through a transfer completed on 31st May 2012 at a purchase price of Kshs.140,000,000.00. It stated that the property was valued at approximately Kshs.250,000,000.00 and was capable of generating rental income of Kshs.250,000.00 per month. 4.The Plaintiff alleged that after acquiring the property, the Department of Defence unlawfully entered upon and occupied the suit land without its consent or any lawful justification. It pleaded that the Department erected a parking sign on the property, fenced it, installed a gate restricting access, converted it into a parking area for its visitors, and prevented the Plaintiff from accessing, using or developing the property. 5.The Plaintiff further averred that despite demanding that the Department of Defence cease its occupation and vacate the suit property, the Department continued with the alleged acts of trespass. According to the Plaintiff, the continued occupation denied it the quiet enjoyment and exclusive possession of the property and prevented it from putting the land to its intended use. 6.As a consequence of the alleged trespass, the Plaintiff pleaded that it had suffered loss and damage, including loss of use of the suit property, mesne profits at the rate of Kshs. 250,000.00 per month with effect from 31st May 2012 until delivery of vacant possession, and general damages for trespass. It further pleaded that the Defendant's actions constituted actionable trespass, that the requisite notice under Section 13A of the Government Proceedings Act had been served, and that no other suit was pending between the parties in respect of the same subject matter. Defence and Counterclaim 7.The Defendant filed a Statement of Defence and Counterclaim denying the Plaintiff's claim, save for the descriptions of the parties and the Court's jurisdiction. It disputed the Plaintiff's ownership of L.R. No. 209/14030, contending that the suit property was at all material times a public road reserve and was therefore not available for allocation to private entities. 8.The Defendant pleaded that the allocation of the suit property, its initial registration in the name of Orbit Express Limited, the subsequent transfer to Impulse Developers Limited and the eventual transfer to the Plaintiff were fraudulent, illegal and irregular. It alleged that the land had been unlawfully excised from a road reserve and that the parties involved knowingly acquired and transferred public utility land contrary to law. 9.The Defendant further averred that the Ministry of Lands had declined to consent to the transfer of the property and had registered a caveat over the title to protect Government interests arising from the property's proximity to the Ministry of Defence Headquarters. It maintained that the removal of the caveat and the subsequent transfers were unlawful, with the result that no valid title could pass to the Plaintiff. 10.The Defendant also pleaded that the Ministry of Defence had consistently opposed any development on the suit property due to national security concerns and declined requests for compulsory acquisition because the land was already public property reserved as a road reserve. It further contended that the Plaintiff could not claim the protection accorded to an innocent purchaser for value since no valid title had ever existed. 11.Accordingly, the Defendant denied liability for the Plaintiff's claim and prayed that the suit be dismissed with costs. By way of Counterclaim, it sought declarations that the original allocation and all subsequent transfers of L.R. No. 209/14030 were null and void and that the Plaintiff's title ought to be cancelled. 12.In the Counterclaim, the Defendant prayed for a declaration that the issuance of title over L.R. No. 209/14030 was null and void ab initio; an order cancelling Grant No. I.R. 83237; a permanent injunction restraining the Plaintiff from interfering with or developing the suit property; and costs together with interest. Reply to Defence and Reply to Counterclaim, 13.In its Reply to Defence and Reply to Counterclaim, the Plaintiff joined issue with the Defence and denied that L.R. No. 209/14030 had ever been or was a road reserve. It maintained that it was the lawful proprietor of the suit property and had been in possession until it was unlawfully dispossessed by the Defendant. The Plaintiff further denied the allegations of fraud, misrepresentation and illegality, contending that the Defendant was put to strict proof thereof. It also pleaded that any claim founded on the alleged fraudulent acquisition of the property by Orbit Express Limited was statute-barred since the property had been first allotted and registered on 5th April 2000. 14.In response to the Counterclaim, the Plaintiff denied that the suit property constituted a road reserve and maintained that the Counterclaim disclosed no reasonable cause of action. It asserted that the intended developments on the property had received the requisite approvals but had not been undertaken due to the Defendant's actions complained of in the Plaint. The Plaintiff further pleaded that it was entitled to exclusive possession of the property, was not a party to Petition No. 70 of 2007, and prayed for the dismissal of the Counterclaim with costs and for judgment as sought in the Plaint. Hearing 15.Following a prolonged delay, the matter was eventually listed for hearing on 14th April 2026. The Plaintiff called one witness, Esther Njeri Gitau (PW1), a Director of the Plaintiff company. She adopted her witness statement dated 1st July 2013 together with the Plaintiff's List and Bundle of Documents as her evidence-in-chief. 16.PW1 testified that the Plaintiff is the registered proprietor of L.R. No. 209/14030, Grant No. I.R. 83237, having acquired the property on 31st May 2012 for a purchase price of Kshs. 140,000,000.00. She stated that the property was valued at Kshs. 250,000,000.00 and generated rental income of Kshs. 250,000.00 per month. She further testified that the Plaintiff had obtained approval from the then City Council of Nairobi on 27th June 2013 to develop residential dwellings on the property but was prevented from doing so because the Department of Defence had erected a parking sign, fenced the property, installed a gate restricting access, and continued occupying the land. She stated that despite demand letters and the statutory notice served upon the Defendant, the alleged trespass persisted, causing the Plaintiff to suffer loss of use of the property, mesne profits and general damages. 17.PW1 further testified that there had been previous proceedings concerning the suit property, including Nairobi Petition No. 70 of 2007 and Environment and Land Judicial Review Case No. 73 of 2015. She stated that notwithstanding those proceedings, the Plaintiff remained the lawful registered proprietor of L.R. No. 209/14030, Grant No. I.R. 83237, and was entitled to exclusive possession thereof. She therefore urged the Court to uphold the Plaintiff's title, find that the Defendant had unlawfully trespassed onto the suit property, and grant the reliefs sought in the Plaint. Issues for Determination 18.I have carefully considered the pleadings, the evidence adduced by the Plaintiff, the documents produced in support of the Plaintiff's case, and the Defence and Counterclaim filed by the Defendant. In my view, the single issue falling for determination is whether the Plaintiff has proved its claim to the required standard and, consequently, whether the Defendant has proved the Counterclaim and is entitled to the reliefs sought therein. Analysis 19.The Plaintiff's claim is founded on the assertion that it is the lawful registered proprietor of L.R. No. 209/14030, Grant No. I.R. 83237, and that the Department of Defence unlawfully entered upon and continues to occupy the suit property. The Defendant disputes the validity of the Plaintiff's title, contending that the suit property is a public road reserve which was unlawfully alienated to private entities and that the Plaintiff consequently acquired no valid title capable of protection. It follows that the Plaintiff's claim for trespass and the Defendant's Counterclaim are inextricably linked, for if the Plaintiff's title is impeachable, the foundation of its claim collapses; conversely, if the title is upheld, the Court must then consider whether the Defendant's occupation amounted to trespass. 20.The legal burden of proof rests upon the party who asserts the existence of a fact. Sections 107, 108 and 109 of the Evidence Act require the Plaintiff to establish the facts upon which its claim is founded, while the Defendant bears the burden of proving the allegations of fraud, illegality and public ownership pleaded in the Counterclaim. Further, Sections 24(a), 25(1) and 26(1) of the Land Registration Act confer upon a registered proprietor the rights of ownership and accord a certificate of title prima facie validity. However, such title may be impeached where it is shown to have been acquired through fraud, misrepresentation, illegality, procedural impropriety or a corrupt scheme. 21.The Court of Appeal in Munyu Maina Vs Hiram Gathiha Maina [2013] eKLR held that where the root of title is under challenge, it is not sufficient for a registered proprietor merely to produce a title deed; the proprietor must demonstrate the legality of its acquisition. The same principle was reiterated in Arthi Highway Developers Limited Vs West End Butchery Limited & 6 Others [2015] eKLR. 22.To establish its claim, the Plaintiff relied on the testimony of PW1 and the documentary evidence contained in its bundle. The Plaintiff produced Grant No. I.R. 83237 together with the deed plan relating to L.R. No. 209/14030. The Grant reflects that the property was first registered in the name of Orbit Express Limited on 24th March 2000 and bears endorsements showing its subsequent transfer to Impulse Developers Limited before it was transferred and registered in the Plaintiff's name on 31st May 2012 for a consideration of Kshs. 140,000,000.00. 23.The Plaintiff also produced a valuation report valuing the property at approximately Kshs. 250,000,000.00, a development approval issued by the City Council of Nairobi on 27th June 2013, correspondence exchanged with the Ministry of Lands, demand letters addressed to the Department of Defence, the statutory notice issued under Section 13A of the Government Proceedings Act, and photographs depicting the alleged occupation of the property by the Department of Defence. 24.Of particular significance is the correspondence emanating from the Ministry of Lands confirming that the Plaintiff was reflected in the land records as the registered proprietor of the suit property. Equally, the development approval issued by the City Council and the valuation report are consistent with the Plaintiff's assertion that it intended to develop the property and was treating it as its own. The demand letters and statutory notice further demonstrate that the Plaintiff asserted its proprietary rights and protested the Department of Defence's continued occupation before commencing these proceedings. The photographs produced in evidence also depict the existence of a fence, gate and parking facilities on the suit property, which accords with PW1's testimony regarding the nature of the alleged interference. 25.On its part, the Defendant's case is that the suit property was at all material times a public road reserve and that its allocation and the subsequent transfers culminating in the Plaintiff's registration were fraudulent, illegal and incapable of conferring a valid title. Fraud and illegality were specifically pleaded and particulars thereof set out in the Defence and Counterclaim. The law is settled that allegations of fraud must not only be specifically pleaded but must also be strictly proved to a standard higher than a balance of probabilities though not beyond reasonable doubt. See Vijay Morjaria Vs Nansingh Madhusingh Darbar & Another [2000] eKLR and Kinyanjui Kamau v George Kamau [2015] eKLR. 26.I have carefully considered the material placed before the Court in support of the Defendant's position alongside the Plaintiff's evidence. While the Defendant maintains that the suit property was unlawfully excised from a road reserve, the material relied upon does not satisfactorily demonstrate that L.R. No. 209/14030 was reserved for public use or that the Grant issued in respect thereof was procured through fraud or illegality. Similarly, although the Defendant challenges the successive transfers of the property, the material before the Court does not displace the chain of title reflected in the Grant and its endorsements, nor does it rebut the correspondence from the Ministry of Lands acknowledging the Plaintiff's registration as proprietor. The Defendant's allegations therefore remain unsupported by cogent evidence capable of impeaching the Plaintiff's title under Section 26(1) of the Land Registration Act. 27.Having weighed the totality of the evidence placed before the Court, I am satisfied that the Plaintiff has established, on a balance of probabilities, that it is the registered proprietor of L.R. No. 209/14030, Grant No. I.R. 83237. The documentary evidence produced by the Plaintiff demonstrates a traceable chain of title and is consistent with its assertion of ownership and possession. Conversely, the material relied upon by the Defendant falls short of establishing that the suit property was a public road reserve or that the Plaintiff's title was acquired through fraud, illegality or any of the grounds contemplated under Section 26(1) of the Land Registration Act. The Plaintiff's title therefore remains valid and entitled to the protection of the law. 28.Having found that the Plaintiff is the lawful proprietor of the suit property, it follows that it was entitled to the exclusive possession and enjoyment thereof. The evidence before the Court, including the correspondence exchanged between the parties and the photographs produced by the Plaintiff, demonstrates that the Department of Defence occupied the suit property and restricted the Plaintiff's access thereto. In the absence of any lawful interest established by the Defendant to justify that occupation, I find that the Defendant's continued occupation of the suit property constituted trespass. The Defendant's Counterclaim therefore fails, while the Plaintiff succeeds in its claim subject to the appropriate reliefs to be considered in the disposition. Disposition 29.In the result, I find that the Plaintiff has proved its case on a balance of probabilities, while the Defendant has failed to prove the Counterclaim. Accordingly, I make the following orders:a.A declaration is hereby issued that the Department of Defence's entry into and continued occupation of L.R. No. 209/14030, Grant No. I.R. 83237, situate along Lenana Road, Nairobi, across and opposite Ulinzi Gate of Ulinzi House at the Headquarters of the Department of Defence, is unlawful.b.An order is hereby issued directing the Department of Defence to vacate L.R. No. 209/14030, Grant No. I.R. 83237, and to yield vacant possession thereof to the Plaintiff.c.The Plaintiff's claim for mesne profits is declined.d.The Defendant's Counterclaim is hereby dismissed.e.The Plaintiff shall have the costs of the suit together with the costs of the Counterclaim and interest thereon at court rates from the date of this Judgment until payment in full.It is so ordered. DATED, SIGNED AND DELIVERED VIA E-MAIL AT NAIROBI ON 15TH DAY OF JULY, 2026.MOHAMMED N. KULLOWJUDGE